Bulrush Horticulture Ltd v an Bord Pleanála ; Westland Horticulture Ltd v an Bord Pleanála

JurisdictionIreland
JudgeMr. Justice Meenan
Judgment Date07 December 2018
Neutral Citation[2018] IEHC 808
Date07 December 2018
CourtHigh Court
Docket Number[2013 No. 398 J.R.] [2013 No. 424 J.R.]

[2018] IEHC 808

THE HIGH COURT

JUDICIAL REVIEW

Meenan J.

[2013 No. 398 J.R.]

[2013 No. 424 J.R.]

IN THE MATTER OF SECTION 50 OF THE PLANNING OF DEVELOPMENT ACT 2000, (AS AMENDED)

BETWEEN
BULRUSH HORTICULTURE LTD
APPLICANTS
AND
AN BORD PLEANÁLA
RESPONDENT
AND
WESTMEATH COUNTY COUNCIL
FIRST NAMED NOTICE PARTY
AND
FRIENDS OF THE IRISH ENVIRONMENT
SECOND NAMED NOTICE PARTY
BETWEEN
WESTLAND HORTICULTURE LTD, WESTMEATH PEAT LIMITED

AND

CAVAN PEAT LIMITED
APPLICANTS
AND
AN BORD PLEANÁLA
RESPONDENT
AND
WESTMEATH COUNTY COUNCIL
FIRST NAMED NOTICE PARTY
AND
FRIENDS OF THE IRISH ENVIRONMENT LTD
SECOND NAMED NOTICE PARTY

Judicial review – Points of law of exceptional public importance – Development – Applicants seeking a certificate that the High Court’s decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Court of Appeal on specified points of law – Whether the provisions of the EIA Directive and/or the Habitats Directive apply to a project lawfully commenced as exempted development prior to the latest dates for transposition of those Directives

Facts: The applicant in the first set of proceedings, Bulrush Horticulture Ltd (Bulrush), by order of the President of the High Court, dated 30 May 2013, was granted leave to apply by way of application for judicial review for: (i) an order of certiorari quashing the decision of the respondent, An Bord Pleanála, dated 15 April 2013 in respect of a referral made pursuant to s. 5(4) of the Planning and Development Act 2000 whereby the respondent decided that drainage of bog lands, peat extraction, access from public roads, peat handling activities and other associated activities and works at Camagh Bog, Doon, Castlepollard, County Westmeath were development and were exempted development until 20 September 2012, after which it was development and not exempted development; (ii) a declaration that the said decision was and is ultra vires, invalid and of no legal effect; (iii) a declaration that the said decision was so unreasonable as to be invalid. By order of Feeney J, dated 6 June 2013, the applicants in the second set of proceedings, Westland Horticulture Ltd, Westmeath Peat Ltd and Cavan Peat Ltd (Westland), were granted similar reliefs in respect of lands at Lower Coole, Mayne, Ballinealloe, Clonsura near Coole and Fineagh, County Westmeath. Judicial review proceedings came on for hearing before the High Court and a written judgment was delivered on 8 February 2018 wherein Meenan J dismissed both applications for judicial review. Bulrush and Westland applied to the High Court seeking a certificate “that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the [Court of Appeal]” on specified points of law, as per the requirements of s. 50A(7) of the 2000 Act. In respect of Bulrush, those points of law were: (i) Is the continuation of peat extraction within the same area of land of more than 30 hectares in area, which enjoyed exempted development status prior to the transposition of Council Directive 85/337/EEC, on the assessment of the effects of certain public and private projects on the environment (the EIA Directive) and Council Directive 92/43/EEC, on the conservation of natural habitats and of wild fauna (the Habitats Directive), subject to the requirements of the said Directives or the relevant provisions of the 2000 Act (including s. 4(4) of the said Act) and/or the Planning and Development Regulations 2001, implementing same, so that the exemption no longer applies? (ii) Can peat extraction not occurring within a new or extended area be regarded as sub-threshold development for the purposes of s. 172(1)(b) of the 2000 Act and para. 2(a) of Part 2 of the Schedule 5 to the Regulations to which the obligation to carry out an EIA might apply? With regards Westland, the specified points of law were: (i) Whether the provisions of the EIA Directive and/or the Habitats Directive apply to a project, in this case peat extraction, lawfully commenced as exempted development prior to the latest dates for transposition of those Directives? (ii) Whether an EIA can be required pursuant to s. 172(1)(b) of the 2000 Act in respect of peat extraction development other than peat extraction development involving a new or extended area of 30 hectares or more?

Held by Meenan J that, applying Glancré Teoranta v Mayo County Council [2006] IEHC 250, what both Bulrush and Westland required was not a decision of the Court of Appeal resolving an uncertainty in the law but rather a change in the law itself; had the new legislation, in the form of Regulations, been enacted then the applications would not have proceeded.

Meenan J held that he would not grant the certificate(s) sought.

Applications refused.

JUDGMENT of Mr. Justice Meenan delivered on the 7th day of December, 2018
Background
1

These are two judicial review proceedings that, essentially, involve similar facts and issues of law.

2

In the first set of proceedings, the applicant is Bulrush Horticulture Limited, hereinafter referred to ‘Bulrush’. In the second set of proceedings, I refer to the applicants collectively as ‘Westland’.

3

By order of the President of the High Court, dated 30 May 2013, Bulrush was granted leave to apply by way of application for judicial review for:-

(i) An order of certiorari quashing the decision of the respondent dated 15 April 2013 in respect of a referral made pursuant to s. 5(4) of the Planning and Development Act 2000 (as amended) (hereinafter referred to as the Act of 2000) whereby the respondent decided that drainage of bog lands, peat extraction, access from public roads, peat handling activities and other associated activities and works at Camagh Bog, Doon, Castlepollard, County Westmeath are development and were exempted development until 20 September 2012, after which it is development and not exempted development

(ii) A declaration that the said decision was and is ultra vires, invalid and of no legal effect

(iii) A declaration that the said decision is so unreasonable as to be invalid.

By order of Feeney J., dated 6 June 2013, Westland was granted similar reliefs in respect of lands at Lower Coole, Mayne, Ballinealloe, Clonsura near Coole and Fineagh, County Westmeath.

4

These judicial review proceedings came on for hearing before the Court and a written judgment was delivered on 8 February 2018 wherein I dismissed both applications for judicial review ( Bulrush Horticulture Ltd. v An Bord Pleanála; Westland Horticulture Ltd. & Ors v An Bord Pleanála [2018] IEHC 58).

5

What is now before the Court is an application, made on behalf of both Bulrush and Westland, seeking a certificate ‘that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the [Court of Appeal]’ on specified points of law, as per the requirements of s. 50A(7) of the Act of 2000. In respect of Bulrush, those points of law are:-

(i) Is the continuation of peat extraction within the same area of land of more than 30 hectares in area, which enjoyed exempted development status prior to the transposition of Council Directive 85/337/EEC, on the assessment of the effects of certain public and private projects on the environment (the ‘EIA Directive’) (this Directive underwent a number of amendments and was ultimately codified in Directive 2011/92/EU) and Council Directive 92/43/EEC, on the conservation of natural habitats and of wild fauna (the ‘Habitats Directive’), subject to the requirements of the said Directives or the relevant provisions of the Act of 2000 (including s. 4(4) of the said Act) and/or the Planning and Development Regulations 2001 (as amended) (‘the Regulations’), implementing same, so that the exemption no longer applies?

(ii) Can peat extraction not occurring within a new or extended area be regarded as sub-threshold development for the purposes of s. 172(1)(b) of the Act of 2000 and para. 2(a) of Part 2 of the Schedule 5 to the Regulations to which the obligation to carry out an EIA might apply?

6

With regards Westland, the specified points of law are:-

(i) Whether the provisions of the EIA Directive and/or the Habitats Directive apply to a project, in this case peat extraction, lawfully commenced as exempted development prior to the latest dates for transposition of those Directives?

(ii) Whether an EIA can be required pursuant to s. 172(1)(b) of the Act of 2000 in respect of peat extraction development other than peat extraction development involving a new or extended area of 30 hectares or more?

7

In the course of my earlier...

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4 cases
  • Friends of the Irish Environment Ltd v Minister for Communications
    • Ireland
    • High Court
    • 20 September 2019
    ...that the law in question stands in a state of uncertainty, had not been met. See Bulrush Horticultural Ltd. v. An Bord Pleanála (No. 2) [2018] IEHC 808. (ii) No time-limit on enforcement proceedings seeking cessation orders 37 The restrictions on the availability of the benefit of exempted......
  • Harte Peat Ltd v The Environmental Protection Agency, Ireland and The Attorney General
    • Ireland
    • High Court
    • 16 March 2022
    ...that the law in question stands in a state of uncertainty, had not been met ( Bulrush Horticultural Ltd. v. An Bord Pleanála (No. 2) [2018] IEHC 808). 63 . A point of distinction between the decision in Bulrush v. An Bord Pleanála and this case, however, is that the Court in Bulrush was con......
  • Friends of the Irish Environment Ltd v Minister for Communications
    • Ireland
    • High Court
    • 23 July 2019
    ...that the law in question stands in a state of uncertainty, had not been met. See Bulrush Horticultural Ltd. v. An Bord Pleanála (No. 2) [2018] IEHC 808. (ii) No time-limit on enforcement proceedings 38 The restrictions on the availability of the benefit of exempted development (discussed a......
  • Liscannor Stone Ltd v Clare County Council
    • Ireland
    • High Court
    • 4 December 2020
    ...Mr. Justice Meenan's prior decision in Bulrush Horticulture Ltd. v. An Bord Pleanála; Westland Horticulture Ltd. v. An Bord Pleanála [2018] IEHC 808, it is suggested this was not an appropriate comparator as it related to peat and the relevant activity did not commence until 37 At p. 113 of......

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